Cody v. Beard et al

Filing 25

FINDINGS and RECOMMENDATIONS recommending that Defendants' Motion for Partial Summary Judgment for Failure to Exhaust Administrative Remedies 17 be GRANTED ;referred to Judge Drozd,signed by Magistrate Judge Barbara A. McAuliffe on 02/19/2016. Objections to F&R due by 3/14/2016 (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

Plaintiff,

13
14

)
)
)
)
)
)
)
)
)
)
)
)
)

JONATHAN CODY,

v.
JEFFREY BEARD, et al.,

15

Defendants.

16
17
18
19
20
21

Case No.: 1:14-cv-01239-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS‟ MOTION FOR
PARTIAL SUMMARY JUDGMENT FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES
(ECF No. 17)
TWENTY (20) DAY DEADLINE

FINDINGS AND RECOMMENDATIONS
I.

Procedural Background
Plaintiff Jonathan Cody (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

22

action pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff‟s first amended

23

complaint against Defendants Hitchman and Boparai (erroneously sued as “Bupari”) for deliberate

24

indifference to serious medical needs in violation of the Eighth Amendment, and against Defendant

25

Hitchman for retaliation in violation of the First Amendment.

26

On June 23, 2015, Defendants Hitchman and Boparai filed a motion for partial summary

27

judgment based on Plaintiff‟s failure to exhaust available administrative remedies. Fed. R. Civ. P.

28

56(c); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 403
1

1

(2014). (ECF No. 17.) Defendants argue that Plaintiff did not identify Defendant Boparai in any

2

inmate appeals, and that he did not include his retaliation claim against Defendant Hitchman in any

3

inmate appeals. (Id.) On August 13, 2015, Plaintiff filed his opposition to Defendants‟ motion for

4

partial summary judgment. (ECF No. 20.) Defendants replied on August 20, 2015. (ECF No. 21) The

5

motion is deemed submitted. Local Rule 230(l).
For the reasons explained below, the Court now recommends that the motion for partial

6
7

summary judgment be granted.

8

II.

9

Legal Standard
A.

Statutory Exhaustion Requirement

10

Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action shall

11

be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a

12

prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as

13

are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is required regardless of the relief

14

sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.

15

731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life,

16

Porter v. Nussle, 534 U.S. 516, 532 (2002).

17

The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising

18

and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007);

19

Albino, 747 F.3d at 1166. “In the rare event that a failure to exhaust is clear on the face of the

20

complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166.

21

Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled

22

to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most

23

favorable to the plaintiff, shows he failed to exhaust. Id.

24

B.

Summary Judgment Standard

25

Any party may move for summary judgment, and the Court shall grant summary judgment if

26

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

27

judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at

28

1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party‟s position,
2

1

whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of

2

materials in the record, including but not limited to depositions, documents, declarations, or discovery;

3

or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or

4

that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.

5

56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to

6

by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco

7

Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609

8

F.3d 1011, 1017 (9th Cir. 2010).

9

The defendants bear the burden of proof in moving for summary judgment for failure to

10

exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative

11

remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendants

12

carry their burden, the burden of production shifts to the plaintiff “to come forward with evidence

13

showing that there is something in his particular case that made the existing and generally available

14

administrative remedies effectively unavailable to him.” Id. “If undisputed evidence viewed in the

15

light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary

16

judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment

17

should be denied, and the district judge rather than a jury should determine the facts.” Id.

18

III.

Discussion
Summary of CDCR’s Administrative Review Process

19

A.

20

The California Department of Corrections and Rehabilitation (CDCR) has an administrative

21

grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The process is initiated by

22

submitting a CDCR Form 602 describing the issue and the relief requested. Id. at § 3084.2(a). Three

23

levels of review are involved—a first level review, a second level review and a third level review. Id.

24

at § 3084.7. Bypassing a level of review may result in rejection of the appeal. Id. at § 3084.6(b)(15).

25

Under § 1997e, a prisoner has exhausted his administrative remedies when he receives a decision at

26

the third level. See Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997).

27

///

28

///
3

Summary of Allegations Underlying Plaintiff’s Eighth Amendment Claim

1

B.

2

In his first amended complaint, Plaintiff alleged that in February 1998, before his incarceration,

3

he was diagnosed with Fibromyalgia Syndrome (FMS). The pain was unbearable and the only thing

4

that would keep it in check was a combination of non-narcotic medications and physical therapy or

5

Eastern medicine, such as acupuncture, and chiropractic adjustments. (FAC, ECF No. 23, p. 2.)

6

In March 2010, Plaintiff was sentenced to prison. While at San Quentin State Prison, a doctor

7

agreed to prescribe Lyrica and Robaxin and referred Plaintiff to physical therapy. Plaintiff also was

8

prescribed a transcutaneous electrical nerve stimulation (TENS) unit. Over the next few years,

9

Plaintiff‟s medications and physical therapy were re-prescribed on a regular basis. Plaintiff also was

10

prescribed Ultram, a non-narcotic medication, for the pain. Plaintiff could manage his pain and daily

11

activities while taking Ultram, Robaxin, Flexaril and Lyrica. (Id.)

12

In March 2013, Plaintiff‟s Robaxin ran out and he requested a refill. Plaintiff was sent to

13

Physician Assistant Hitchman and was told that his prescription would not be refilled. Plaintiff also

14

was told that his complaining would only get him cut off the rest of his medications. Physician

15

Assistant Hitchman then cut off the Ultram and said that the Lyrica would be cut off next. Physician

16

Assistant Hitchman cut Plaintiff off of those medications. Defendant Hitchman later told Plaintiff that

17

he was only following orders from the Chief Medical Officer. (FAC, p. 3.)

18

After his medications were cut off, Plaintiff‟s pain returned and his ability to sleep, sit, move,

19

walk and exercise became harder. The simplest daily activities became unbearable. Plaintiff filed a

20

602 and asked to see a doctor. Plaintiff was seen by Dr. Ememoto, who asked irrelevant questions,

21

looked at two-year old lab reports and prescribed vitamin D. During a second visit, when Plaintiff

22

asked for physical therapy, Defendant Ememoto gave Plaintiff a list of exercises. Plaintiff later saw

23

Dr. Cayman, who told Plaintiff that FMS did not exist. Dr. Cayman put in an order for Plaintiff to see

24

a rheumatologist, but the order was denied by Chief Medical Officer Boparai. Dr. Cayman told

25

Plaintiff that he was under direct orders not to prescribe physical therapy and to cut back pain meds.

26

(Id.)

27

Plaintiff alleges that doctors will only see him once every three months and refuse to allow him

28

to attend physical therapy despite the recommendation that he return. At one point, Plaintiff was
4

1

shown a note written by Defendant Boparai asking if there was a way to cut Plaintiff off of Lyrica.

2

Plaintiff was told by Defendant Hitchman that this was a cost issue, not a medical decision. Defendant

3

Hitchman also told Plaintiff that he was paying the price for his attorney singling Defendant Hitchman

4

out in an email to the CMO. (Id.)

5

C.

Statement of Undisputed Facts1

6

1.

Plaintiff filed his initial Complaint in the U.S. District Court for the Eastern District of

7

California on August 7, 2014. (Compl., ECF No. 1, p. 1.)
2.

8
9

2015 (FAC, at p. 1.)
3.

10
11

Plaintiff filed his First Amended Complaint (i.e., the operative complaint) on March 9,

Plaintiff alleges that the conduct at issue in the First Amended Complaint took place in

March 2013. (FAC, at p. 3.)
4.

12

At all times relevant to the First Amended Complaint, Plaintiff Jonathan Cody (CDCR

13

No. AC-5613) was a state inmate incarcerated at Avenal State Prison (“ASP”) in Avenal, California.

14

(FAC, at pp. 1-2.)

15

5.

16

The conduct at issue in the First Amended Complaint, as screened, took place at ASP. 2

(FAC, at p. 2.)
6.

17

ASP has an inmate grievance process for inmate healthcare appeals, which contains

18

three levels of review. An inmate‟s appeal must proceed through the Third Level of Review in order to

19

conclude the inmate grievance process. (Decl. of S. Kiester, ECF No. 17-3, ¶¶ 1-3; Decl. of R.

20

Robinson, ECF No. 17-4, ¶¶ 1-6; FAC, at 1.)
7.

21
22

From the month of the conduct at issue in the First Amended Complaint (March 2013)

through the date Plaintiff filed his initial Complaint (August 7, 2014), the Appeals Coordinator at ASP

23
1

24
25

See Plaintiff‟s Response to Defendants‟ Statement of Undisputed Facts and Statement of
Disputed Facts. (ECF No. 20, pp. 13-18.) Any facts which the parties genuinely dispute are not
included in this statement of undisputed facts.
2

26
27
28

Plaintiff argues that his First Amended Complaint also challenges conduct that relates back to
2010, and which took place when he was not incarcerated at ASP. (ECF No. 20, p. 13-14, 17.)
Although his First Amended Complaint discusses medications and treatments prescribed by nonparties while Plaintiff was incarcerated at San Quentin State Prison in 2010, and summarizes his
medical condition over the next few years, Plaintiff‟s claims only challenge Defendants‟ conduct
which occurred in March 2013 while he was incarcerated at ASP. (FAC, at p. 3.)
5

1

accepted two healthcare appeals filed by Plaintiff— appeal No. ASP-HC-13026504 and appeal No.

2

ASP-HC-13027274. (Decl. of S. Kiester, ¶¶3-4; Cody Appeal History, ECF No. 17-3, p. 5.)
8.

3

In appeal No. ASP-HC-13026504, submitted May 23, 2013, Plaintiff complained that

4

his “[n]urse practitioner (PA) discontinued [his] med[ications] prescribed by M.D. and Phys. Therapy

5

[and] that were sanctioned by 3rd level response” despite complaints of severe muscle spasms and

6

pain in his back and chest. Plaintiff requested “to resume [his] medications (Robaxin and Ultram) and

7

physical therapy and for [his] needs to be attended to in a reasonable timeframe.” (Decl. of S. Kiester,

8

¶ 5; ASP-HC-13026504, ECF No. 17-3, p. 27.)
9.

9
10

Plaintiff did not identify the name of the PA allegedly responsible for discontinuing his

medications in appeal No. ASP-HC-13026504, nor any other responsible staff members. (Id.)
10.

11

The appeal was accepted at the First Level of Review on or about June 4, 2013. The

12

First Level of Review partially granted Plaintiff‟s appeal on June 28, 2013, stating that Plaintiff was

13

receiving timely and effective care from providers at ASP, and that Plaintiff could submit a Medical

14

Request for Services (CDCR Form 7362) at any time for his medical concerns. Plaintiff‟s requests for

15

physical therapy and to resume Robaxin and Ultram were specifically denied.3 (Id.; see also 6/28/2013

16

Institution Resp. for First Level HC Appeal, ECF No. 17-3, pp. 25-26.)
11.

17

Plaintiff submitted his appeal to the Second Level of Review on July 18, 2013. The

18

appeal was accepted at the Second Level of Review on or about July 24, 2013. On August 5, 2013, the

19

Second Level of Review partially granted Plaintiff‟s appeal, stating that Plaintiff would remain on the

20

drug Lyrica and was scheduled for a follow-up appointment in four to five months. Plaintiff‟s requests

21

for physical therapy and to resume Robaxin and Ultram were specifically denied. (Decl. of S. Kiester,

22

¶ 5; ASP-HC-13026504, ECF No. 17-3, p. 28; Institution Resp. for Second Level HC Appeal, ECF

23

No. 17-3, pp. 31-32.)

24

///

25
26
27
28

3

Plaintiff notes that he disputes whether he was actually provided any additional care
subsequent to filing appeal no. ASP-HC-13026504. (ECF No. 20, p. 15.) This disputed fact is not a
material fact for determining this motion for partial summary judgment, because whether Plaintiff
actually received additional care or not has no bearing on whether he exhausted his administrative
remedies.
6

12.

1

In appeal No. ASP-HC-13027274, submitted on or about October 28, 2013, Plaintiff

2

complained that he was “not receiving care in [a] timely manner,” and that he was not receiving

3

Robaxin, Ultram, nor physical therapy. (Decl. of S. Kiester, ¶ 6; ASP-HC-13027274, ECF No. 17-3, p.

4

34.)
13.

5
6

Plaintiff did not identify the name(s) of any responsible staff members in appeal No.

ASP-HC-13027274. (Id.)
14.

7

Plaintiff‟s appeal was cancelled at the First Level of Review on October 30, 2013, as

8

being duplicative of appeal No. ASP-HC-13026504. (Id.; see also 10/30/2013 Appeals Resp., ECF no.

9

17-3, p. 36.)
15.

10

From the month of the conduct at issue in the First Amended Complaint (March 2013)

11

through the date Plaintiff filed his initial Complaint (August 7, 2014), the Third Level of Review

12

accepted one inmate healthcare appeal from Plaintiff— appeal No. ASP-HC-13026504. (Decl. of R.

13

Robinson ¶¶ 7-8; Cody Appeal History, ECF No. 17-4, p. 6)
16.

14

In response to the Second Level decision in appeal No. ASP-HC-13026504, Plaintiff

15

claimed that PA Hitchman “has reported incorrectly, and refuses to acknowledge [Plaintiff‟s] medical

16

problems,” and “discontinued a valid prescription without examining [him].” Plaintiff further claimed

17

that PA Hitchman “has said in the past that he doesn‟t believe fibromyalgia exists.” Plaintiff

18

reemphasized that he wished to resume treatment with Ultram, Robaxin, and physical therapy. (Decl.

19

of R. Robinson, ¶ 9; ASP-HC-13026504, ECF No. 17-4, p. 12-13.)
17.

20
21

Plaintiff did not name any other responsible staff members other than PA Hitchman in

submitting appeal No. ASP-HC-13026504 to the Third Level. (Id.)
18.

22

On November 25, 2013, the Third Level of Review denied Plaintiff‟s appeal, finding

23

that Plaintiff‟s medical condition had been properly evaluated and that he was receiving treatment

24

deemed medically necessary. (Id.)
19.

25

Plaintiff has filed at least ten healthcare appeals since April 27, 2010. (Decl. of S.

26

Kiester, ¶ 7; Cody Appeal History, ECF No. 17-3, pp. 5-8.)

27

///

28

///
7

1
2

D.

Analysis
1.

Deliberate Indifference Claim Against Defendant Boparai

3

Defendants first argue that Plaintiff‟s claim deliberate indifference to serious medical needs

4

against Defendant Boparai should be dismissed because Plaintiff failed to name Defendant Boparai in

5

any of his health care appeals. (ECF No. 17-1, pp. 7-8.) Cal. Code Regs. tit. 15, § 3084.2(a)(3) (On the

6

inmate appeal form, “[t]he inmate or parolee shall list all staff member(s) involved and shall describe

7

their involvement in the issue.”). Plaintiff admits that he did not provide Defendant Boparai‟s name on

8

any of his inmate appeal forms, but argues he has nevertheless sufficiently exhausted his

9

administrative remedies. (ECF No. 20, pp. 4-8.) Plaintiff notes that Defendant Boparai identified

10

himself as the first level reviewer for Plaintiff‟s appeal No. ASP-HC-13026504, (ECF No. 13-7, p.

11

27), and argues that this obviated the need for Plaintiff to identify Defendant Boparai in any appeal.

12

Although a procedural error may not always prevent a plaintiff from exhausting his

13

administrative remedies, Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016), the plaintiff‟s description

14

of his issue in his appeal must be sufficient to put the prison on notice of his claim so as to fulfill the

15

basic purposes of exhaustion. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). In this case,

16

Plaintiff‟s appeal No. ASP-HC-13026504—his only relevant appeal which was processed through all

17

levels of review—solely concerned his complaints about Defendant Hitchman‟s conduct and treatment

18

determinations. There is no mention of any other medical provider‟s involvement, nor any information

19

otherwise identifying Defendant Boparai as a subject of that appeal. Although Defendant Boparai

20

identified himself as one of the reviewers of Plaintiff‟s appeal, this is a separate issue from whether

21

Plaintiff put the prison on notice of any complaint about Defendant Boparai‟s conduct outside of the

22

appeals process. That is, Plaintiff‟s appeal does not show that he put the prison officials on notice of

23

his allegations against Defendant Boparai which form the basis of his first amended complaint so that

24

they could be redressed.

25

To the extent Plaintiff is arguing that his claim in his first amended complaint is based on

26

Defendant Boparai‟s administrative review of his appeal, this position is untenable. Prisoners have no

27

“free-standing cause of action for improper grievance-rejection.” See Ott v. Lopez, No. CV 11-04291

28

PSG RZ, 2012 WL 2366414, at *1 (C.D. Cal. May 8, 2012) report and recommendation adopted, No.
8

1

CV 11-04291 PSG RZ, 2012 WL 2366413 (C.D. Cal. June 20, 2012). The Court in screening

2

Plaintiff‟s complaint found he alleged a claim concerning conduct in March 2013 for deliberate

3

indifference to his serious medical issues, not for the incorrect denial of an appeal. (ECF No. 7.)

4

Plaintiff‟s failure here is more than merely procedural. Rather, Plaintiff‟s grievance failed to

5

“alert[ ] the prison to the nature of the wrong for which redress is sought” and provide sufficient

6

information “to allow prison officials to take appropriate responsive measures.” Griffin, 557 F.3d at

7

1120-21 (quotation marks omitted). Therefore, the Court finds that Defendants have carried their

8

burden of showing that Plaintiff did not properly exhaust his available administrative remedies against

9

Defendant Boparai.

10

2.

Retaliation Claim Against Defendant Hitchman

11

Defendants next argue that Plaintiff failed to exhaust his administrative remedies for his

12

retaliation claim against Defendant Hitchman by failing to mention any retaliatory behaviour in his

13

inmate appeals. (ECF No. 17-1, pp. 8-9.) In opposition, Plaintiff argues that he did sufficiently provide

14

notice of his retaliation claim, because he wrote in his appeal that “[u]pon reporting” his medical

15

complaints to Defendant Hitchman, he was told he would not see a primary care physician for three

16

months and his medications and physical therapy were discontinued. (ASP-HC-13026504, ECF No.

17

17-3, p. 27.) Plaintiff argues that this shows he informed the prison officials that Defendant Hitchman

18

discontinued Plaintiff‟s treatments in retaliation for complaining about his condition.

19

“Under the PLRA, a grievance „suffices if it alerts the prison to the nature of the wrong for

20

which redress is sought.‟” Reyes, 810 F.3d at 659 (quoting Sapp v. Kimbrell, 623 F.3d 813, 824 (9th

21

Cir. 2010)). Although the grievance need not include legal terminology or legal theories, it must alert

22

the prison to the nature of the problem and facilitate its resolution. Griffin, 557 F.3d at 1120. In this

23

case, Plaintiff‟s appeal does not sufficiently explain that Defendant Hitchman was retaliating against

24

Plaintiff for reporting symptoms. Plaintiff‟s appeal describes his issue, in full, as follows:

25

Upon reporting severe muscle spasm/pain in back + chest, I was told I wouldn‟t

26

be seen by the PCP for 3 months. Nurse Practitioner (PA) [Hitchman]

27

discontinued meds prescribed by MD and Phys Therapy, that were sanctioned by

28

3rd level response.
9

1

(ASP-HC-13026504, ECF No. 17-3, p. 27) (errors in original). This statement does not suggest that

2

Defendant Hitchman‟s treatment recommendations and conduct were done for any retaliatory

3

purposes. A plain reading of Plaintiff‟s appeal suggests, at most, that Plaintiff disagreed with

4

Defendant Hitchman‟s treatment recommendations, which were made despite Plaintiff reporting

5

severe medical issues. No retaliatory animus or reasons for Defendant Hitchman‟s conduct are even

6

hinted at in Plaintiff‟s appeal. Thus, the Court finds that Defendants have carried their burden of

7

showing that Plaintiff has not exhausted his administrative remedies with regard to his First

8

Amendment retaliation claim against Defendant Hitchman.

9

V.

10
11

Conclusion and Recommendation
For the reasons stated, IT IS HEREBY RECOMMENDED that Defendants‟ motion for partial

summary judgment for failure to exhaust administrative remedies (ECF No. 17) be granted.

12

These Findings and Recommendations will be submitted to the United States District Judge

13

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20)

14

days after being served with these Findings and Recommendations, the parties may file written

15

objections with the Court. The document should be captioned “Objections to Magistrate Judge‟s

16

Findings and Recommendations.” The parties are advised that failure to file objections within the

17

specified time may result in the waiver of the “right to challenge the magistrate‟s factual findings” on

18

appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

19

1391, 1394 (9th Cir. 1991)).

20

IT IS SO ORDERED.

21
22

Dated:

/s/ Barbara

February 19, 2016

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
10